1. ' GHULAM DASTAGIR A. SHAHANI, J.--- Through this criminal appeal, appellant Bakht son of Shah Nazar has assailed judgment, dated 21-5-2007 passed by learned VIIIth Additional Sessions Judge, Karachi South, whereby, appellant was convicted and sentenced under section 320, P.P.C. To undergo R.I. For 5 years and to pay Diyat amount Rs,6,43,760 to the legal heirs of deceased.
2. However, in default of payment of Diyat, appellant would further suffer simple imprisonment till payment of Diyat or part thereof. Appellant was also extended benefit of section 382-B, P.P.C.
3. ' Fact in brief are that on 2340-2004 case was registered at Police Station Defence, Karachi by complainant A.S.-L Mashkoor Hussain stating therein that an entry was received from Madadgar 15, to the effect that at bus stop of Akhtar Colony, main Korangi Road Karachi, an incident took place in which one lady was injured by a truck. On receipt of entry, complainant along with P.C. Ansar Iqbal proceeded towards the place of incident, complainant found -S.4. Ameer Ahmed in whose presence complainant prepared Mashirnama. S.-I. Ameer Ahmed informed complainant that the driver of trawler bearing Registration No, LSA-6557 Bakht Zada is in custody who was driving the said vehicle in a rash and negligent manner and while going from Defence Morr to Korangi, hit an unknown lady who was crossing road. Resultantly said lady received serous injuries and was taken to Jinnah Hospital. After completing the formalities at the spot, complainant proceeded to Jinnah Hospital and visited the Emergency Ward, where dead body of deceased lady was lying, and her name was transpired from her N.I.C. As Erum daughter Yousuf Khokhar aged about 24/25 years. In presence of P.C. Anwar Iqbal and brother of deceased lady namely Ali Shah, completed the formalities under section 174, Cr.P.C. He enquired cause of death from M.L.O. And after completing all the formalities and post-mortem, handed over the dead body to her brother Ali Shah and returned back to police station. During investigation and recording statements of' witnesses, Investigating Officer found that accused Bakht Zada was driving trawler in a rash and negligent manger, hit deceased Mst. Erum Yousuf and she became seriously injured and died subsequently, F.I.R. Under section 320, P.P.C. Was lodged. Challan was submitted against the accused/appellant with the competent Court of law.
4. ' A formal charge was framed against accused who did not plead guilty and claimed his trial.
5. ' Prosecution examined P.W.1 S.-I. Ameer Ahmed who produced memo. Of site inspection at Exh.4/A.
6. P.W.2 P.C. Ansar Iqbal examined, who produced inquest report at Exh.5/A, memo. Of inspection of dead body at Exh.5/B, memo. Of arrest of accused at Exh.5/C, Roznamcha Entry No,26, dated 23-10- 2004 at Exh.5/D. Vide statement at Exh.6. Learned D.D.A. Gave up P.W. P.C. Mumtaz Hussain. P.W.3 complainant A.S.-I. Mashkoor Hussain examined, who produced photocopy of N.I.C. Of the deceased at Exh.7/A, Superdiginama of dead body at Exh.7/B, letter addressed to M.L.O. Seeking cause of death at Ex.7/C, F.I.R. At Exh.7/D. P.W.4 Dr. Kausar Parveen was examined at Exh.8, who produced attested photocopy of post-mortem notes at Exh.8/A, certificate of cause of death at Exh.8/B. Vide Exh.9 statement of Investigating Officer, Inspector Shahid Altaf was recorded as Court-witness, whereby he returned the summons of P. Ws. Ali Shah and Abrar Hussain unserved with report that they are not traceable. P.W.5 Imtiaz Ali Motor Vehicle Inspector was examined at Exh.10, who produced his report at Exh.11, sketch of site at Exh.11/A. Vide statement at Exh.12, the learned D.D.A. Closed the prosecution side on 20-4-2007.
7. ' Statement of accused was recorded under section 342, Cr.P.C. At Exh.13, in which he denied the commission of offence and pleaded his innocence. However, he neither examined himself on oath under section 340(2), Cr.P.C. Nor examined any witness in his defence.
8. ' After completion of trial, the learned trial Court framed the following points for determination:- Points
(1) Whether deceased Mst. Erum daughter of Yousuf Khokhar died her unnatural death due to road traffic accident on 23-10-2004?
(2) Whether accused Bakht Zada son of Shah Nazar while driving trawler bearing Registration No,LSA-6557 in a rash and negligent manner committed Qatl-i-Khata of deceased lady Mst. Erum daughter Yousuf Khokhar by hitting her with his trawler?
(3) What offence, if any, accused has committed?
9. ' However, learned trial Court after recording the statements of prosecution witnesses and going through the material available before it, passed the impugned judgment, convicting appellant/accused as above. Hence present criminal appeal.
10. ' Heard Mr. Shahadat Awan learned counsel for the appellant, as well as to Mr. Navid Ali Khokhar learned State Counsel at length. Mr. Shahadat Awan learned counsel for the appellant argued that appellant is absolutely innocent and has not committed offence, as alleged by the prosecution. No private witness has been examined by the prosecution. In this regard report of the process-server brought on record that private witness namely Ali Shah is not traceable and has shifted his residence. He further argued that no P.W. Has deposed against the accused and none of them has uttered a single word that the accused was the driver of the trawler at the relevant time. P.W. S.-I.
11. Ameer Ahmed has stated that the accused was caught hold by public, but actual facts are totally different. Accused was brought at police station along with 2/3 drivers on the next day of the incident, where remaining drivers were let off by the police and accused was involved in the instant crime with mala fide and ulterior motive and memo. Of arrest was prepared at police station. He further argued that post-mortem report is not available in police papers and only its photocopy has been produced by W.M.L.O. With submission that original report is missing from record, but no entry in this regard is available in a station diary, which clearly established that no occurrence has been taken place and the accused has malafidely been involved in the instant crime. As per prosecution witnesses, they have not seen the vehicle driving rashly and negligently, therefore, section 320, P.P.C. Does not attract in this case. Lastly argued that all the witnesses are police officials and their testimony has no value in the eye of law and pray for acquittal of the accused/appellant.
12. ' On the other hand learned State Counsel fully supported the judgment of learned trial Court and vehemently argued that accused was arrested on spot soon after committing the offence and this fact has been supported by prosecution witnesses. Accused found guilty of offence and all material brought on record has clearly established that accused is guilty of rash and negligent driving as at the crucial time he was driving trawler at high speed on the thickly populated area and had not reduced its speed, even at the point of occurrence where deceased was knocked down. All P.Ws. Have fully supported the prosecution case and corroborated the version of complainant coupled with medical evidence, as well as inquest report. The prosecution has established its case beyond any reasonable doubt.
13. As regards the point No,1 prosecution examined Kausar Parveen, Additional Police Surgeon, Sindh Government Hospital Saudabad, Karachi at Exh.8, wherein, she categorically deposed that cause of death of the deceased was cardio respiratory failure due to acute head injury by hitting of hard and blunt substance could A be road traffic incident and therefore, her death was unnatural. As such it is proved beyond any doubt that deceased was died due to unnatural death.
14. ' So far as point No,2 is concerned, prosecution examined Ameer Ahmed, who in his deposition deposed that incident took place on 23-10-2004 when he was on patrolling. At about 2-00 p.m., he received information from 15 Control that there was some problem at main Korangi Road.
15. Therefore, he rushed to the place, where he found that a trawler hit a lady. He hired a private vehicle and sent the injured lady to a hospital, He categorically deposed that accused Bakht Zada was driver of said Trawler, who was overpowered by the public. Thereafter they took the trawler and accused to Police Station Defence. In the meanwhile A.S.-I. Mashkoor along with Ansar reached at place of incident and prepared the memo. Of inspection, wherein, he and P.C. Ansar were made Mashirs. He was cross-examined but no material could be brought on record to create doubt in his testimony. The next witness of the prosecution was Ansar Iqbal, he deposed that incident took place on 23-10-2004. On said date he was posted at Police Station Defence, as Roznamcha Moharrir. They received information that an incident took place at main Korangi Road. Upon receiving such information, he along with A.S.-I. Mashkoor Hussain went to the place of incident and prior to their arrival the injured lady was sent to a hospital by public. Thereafter they went to J.P.M.C. And visited the emergency ward, where dead body of deceased lady was lying. From her N.I.C. Which was found in her purse, she was found to be Erum daughter of Yousuf Khokhar.
16. However, brother of the deceased also came at hospital and in the presence of her brother he and A.S.-I. Mashkoor Hussain inspected the dead body and prepared inquest report. I4owever, after consulting W.M.L.O. Dr. Kausar Parveen, they came to police station and A.S.-I. Mashkoor Hussain registered the case against the accused. He was also cross-examined, but nothing could be brought in order to make the case of prosecution to be doubtful, on the contrary he fully corroborated the evidence of complainant. Next witness of the prosecution is A.S.-I. Mashkoor Hussain Bhatti who is complainant in this case, has deposed that on 23-10-2004, he was posted at Police Station Defence. At about 2-15 p.m., he received information through 15 Clifton that an accident took place near Akhtar Colony Bus Stop at main Korangi Road. He along with P.C. Ansar went to place of occurrence where he found one official mobile-III. S.-I. Ameer sent injured lady to hospital. Thereafter, he prepared memo. Of site inspection on the spot. The trawler and driver were present at the place of incident both were brought at police station. After completing the formalities on the spot, he went to Jinnah Hospital where he handed over the letter to M.L.O. For recording the statements of injured lady. M.L.O. Informed him that said lady has expired. However, he was further informed that said lady was Erum daughter of Yousuf Khokhar, as appearing from her N.I.C. Found from her purse. In the meanwhile brother of deceased namely Ali Shah also arrived at hospital. Thereafter he conducted inspection of dead body and prepared inquest report. After completion of necessary formalities the dead body was handed over to the brother of deceased Ali Shah under a receipt. Thereafter he returned back to police station and lodged the F.I.R. However, he was cross-examined by the learned counsel for the accused but nothing favourable to the accused was spoken by him. Thereafter, prosecution examined P.W. Dr. Kausar Parveen who confirmed the death of the deceased due to cardio respiratory failure because of acute head injury by hitting of hard and blunt substance and further specified it to be caused by road traffic accident. The next witness of the prosecution is Imtiaz Ali Motor Vehicle Inspector, who inspected the vehicle bearing No, LSA-6557 and he found said vehicle to be mechanically fit. Such witness was not cross-examined though opportunity was given. Last witness of the prosecution is Inspector Shahid Altaf Investigating Officer of the case. Who interrogated the accused who disclosed that he was driver of trawler viz. LSA-6557 and during driving he tried to save another vehicle but unfortunately he hit the girl who was crossing road. Said girl become seriously injured and died subsequently. He after completing usual investigation submitted the challan before the competent Court of law. He was cross-examined at length wherein he deposed that he did not produce the accused before the Judicial Magistrate for recording of his confession.
17. ' However, in cross-examination some questions as regards the driving of the appellant, as well as tyre marks at the place of incident were put to Investigating Officer, which prima facie suggest that the same were asked in order to show that the appellant was not driving the said trawler rashly and negligently, whereas, in statement under section 342, Cr.P.C. The appellant has denied his presence at the spot by saying that officials of Police Station Defence of Operation Branch brought him at police station along with 2/3 other drivers. Further, it is evident from the record that Trawler No, LSA-6557 hit the deceased lady and in the statement the appellant has categorically affirmed himself to be owner of said Trawler but did not take a plea that said trawler was being driven by any other driver, though appellant was provided an to produce any defence witness. However, the appellant has failed to opportunity to examine himself on oath under section 340(2), Cr.P.C. Or bring any material to show of the police due to which police involved him in the present case falsely.
18. ' In view of above facts and circumstances, accused/ appellant is guilty of the offence and rightly convicted by the trial Court on the basis of evidence and nothing has come on record, on the basis of which such evidence may not be believed. Therefore, conviction and sentence awarded to appellant/accused Bakht Zada is maintained. No illegality or infirmity in the judgment passed by the trial Court is found or pointed out by the learned counsel for the appellant and findings of Court below are reasonable and are not against any provision of law or any accepted principles concerning appreciation of the evidence. With above observations the appeal is dismissed and trial Court will be at liberty to take appropriate action, so accused/appellant serve out his sentence as awarded by the learned trial Court vide judgment, dated 21-5-2007.